Labour Disputes
Texto da decisão
REF FPSD-8070
Decision of the
Dispute Resolution Chamber
passed on 15 February 2023
regarding an employment-related dispute concerning
the player Agustin Torassa
BY:
Angela Collins (Australia)
CLAIMANT:
Agustin Torassa, Argentina
Represented by Kasalo & Raić
RESPONDENT:
SC Gjilani, Republic of Kosovo
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REF FPSD-8070
I. Facts of the case
1.
On 12 June 2021, the Argentinian player Agustin Torassa (hereinafter the Claimant or the
Player) and the Kosovar club SC Gjilani (hereinafter the Respondent or the Club) concluded
an Employment Agreement (hereinafter the Employment Agreement) valid as from
1 July 2021 until 30 June 2023.
2.
In Clauses 1 and 10 of the Employment Agreement, the Claimant and the Respondent
(jointly referred to as the parties) agreed upon the following financial conditions:
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monthly salary in the net amount of EUR 4,166.00 for the season 2021/2022, and
monthly salary in the net amount of EUR 5,833.00 for the season 2022/2023, and
bonus for qualification to international competitions (i.e. UEFA club competitions)
in the net amount of EUR 5,000.00, and
bonus for participation in more than 70% of the Club’s official matches in the net
amount of EUR 5,000.00, and
expenses of three round tickets in route Buenos Aires-Prishtina-Buenos Aires.
3.
The Employment Agreement stipulated that the salaries are payable “from date 1 to 5 of
each month” and the bonuses “to the date of 30.06.2022”.
4.
At the end of the season 2021/2022, the Respondent finished 3rd in Kosovo Superliga and
qualified for the UEFA club competition.
5.
Equally, in the season 2021/2022, the Player participated in more than 70% of the Club’s
official matches.
6.
On 7 October 2022, the Claimant put the Respondent in default, requesting outstanding
salaries in the amount of EUR 31,665. The Claimant granted the Respondent a deadline
of 15 days to pay the outstanding amounts, however, to no avail.
7.
It his default notice, the Claimant clarified that the said outstanding amount corresponds
to the following:
“- bonus for qualification to UEFA Club competitions stipulated in point 1. e) of net
EUR 5,000.00, which matured on 30/6/2022, and
- bonus for participation in more than 70% of the Club’s official matches in the season
2021/2022 stipulated in point 1. g) above of net EUR 5,000.00, which matured on 30/6/2022,
and
- June 2022 salary in the net amount of EUR 4,166.00, which matured on 5/7/2022, and
- July 2022 salary in the net amount of EUR 5,833.00, which matured on 5/8/2022, and
- August 2022 salary in the net amount of EUR 5,833.00, which matured on 5/9/2022, and
- September 2022 salary in the net amount of EUR 5,833.00, which matured on 5/10/2022;”
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8.
On 25 October 2022, the Claimant terminated the Employment Agreement with the
Respondent.
9.
On 10 January 2023, the Respondent made a payment of EUR 31,665.
10. The Claimant informed the FIFA general secretariat that the remained unemployed.
II. Proceedings before FIFA
11. On 2 November 2022, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
12. The Claimant requested EUR 88,755, basing his claim on art. 14bis of the Regulations.
13. The Claimant provided for the following break-down:
Outstanding amounts: EUR 36,369.03
- “bonus for qualification to UEFA Club competitions stipulated in point 1. e) of net
EUR 5,000.00, which matured on 30/6/2022, and
- bonus for participation in more than 70% of the Club’s official matches in the season
2021/2022 stipulated in point 1. g) above of net EUR 5,000.00, which matured on
30/6/2022, and
- June 2022 salary in the net amount of EUR 4,166.00, which matured on 5/7/2022, and
- July 2022 salary in the net amount of EUR 5,833.00, which matured on 5/8/2022, and
- August 2022 salary in the net amount of EUR 5,833.00, which matured on 5/9/2022,
and
- September 2022 salary in the net amount of EUR 5,833.00, which matured on
5/10/2022, and
- salary for the period from 1/10/2022 until 25/10/2022 of net EUR 4,704.03, which
matured on 25/10/2022”
Compensation: EUR 52,385.97
- Residual value of the contract, i.e. EUR 47,792.97,
- EUR 4,593.00 (3 x EUR 1,531.00) based on a website Kiwi
b. Position of the Respondent
14. In its reply to the claim the Respondent merely submitted untranslated proof of payment
of EUR 31,665.
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c. Position of the Respondent
15. The Claimant was invited to comment on the alleged payments by the Respondent.
16. In this respect, the Claimant recognized that the payment of EUR 31,665 has been made
on 10 January 2023, i.e. after the employment relationship has been terminated.
17. In view of the above, the Claimant insisted on his claim, yet amended his request for relief:
“to condemn the Respondent to pay in favor of the Claimant an accrued default interest of 5%
p.a., accrued as follows:
- on amount of net EUR 10,000.00, from 30/6/2022 until 10/1/2023, and
- on amount of net EUR 4,166.00, from 5/7/2022 until 10/1/2023, and
- on amount of net EUR 5,833.00, from 5/8/2022 until 10/1/2023, and
- on amount of net EUR 5,833.00, from 5/9/2022 until 10/1/2023, and
- on amount of net EUR 5,833.00, from 5/10/2022 until 10/1/2023;
within 45 days as from the date of notification of the decision in the matter of the reference to
the Respondent; and
to condemn the Respondent to pay in favor of the Claimant a balance of outstanding
remuneration of net EUR 4,704.03 (four thousand, seven hundred and four euros and three
cents), which matured on 25/10/2022 within 45 days as from the date of notification of the
decision in the matter of the reference to the Respondent; and
to condemn the Respondent to pay in favor of the Claimant compensation for breach of contract
of net EUR 52,385.97 (fifty-two thousand, three hundred and eighty-five euros and ninety-seven
cents) which matured on 25/10/2022, while at the same time taking into account provisions of
Article 17. of FIFA RSTP, within 45 days as from the date of notification of the decision in the
present matter to the Respondent;
and to condemn the Respondent to provide the Claimant with the corresponding tax certificates
concerning the payment of all the above specified net amounts, as well as corresponding tax
certificates concerning the payment of net EUR 31,665.00 executed on 10/1/2023 to the Player by
the Club, within 45 days as from the date of notification of the decision in the matter of the
reference to the Respondent”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge (hereinafter also referred to as the Single Judge) analysed
whether she was competent to deal with the case at hand. In this respect, she took note
that the present matter was presented to FIFA on 2 November 2022 and submitted for
decision on 15 February 2023. Taking into account the wording of art. 34 of the October
2022 edition of the Procedural Rules Governing the Football Tribunal (hereinafter the
Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the
matter at hand.
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2.
Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players October 2022 edition), she is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Argentinian player and a Kosovar club.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (October 2022
edition) and considering that the present claim was lodged on 2 November 2022, the
October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
4.
The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the Transfer Matching System (TMS).
c. Merits of the dispute
5.
Her competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, she emphasised that in the following considerations it
will refer only to the facts, arguments and documentary evidence, which she considered
pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the case concerns an early termination of the
contract by the Claimant, based on the alleged non-payment of certain financial
obligations by the Respondent as per the contract, in accordance with art. 14bis of the
Regulations.
7.
In this context, the Single Judge acknowledged that her task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact
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remained unpaid by the Respondent and, if so, whether the formal pre-requisites of
art. 14bis of the Regulations had in fact been fulfilled.
8.
The Single Judge then referred to the wording of art. 14bis par. 1 of the Regulations, in
accordance with which, if a club unlawfully fails to pay a player at least two monthly
salaries on their due dates, the player will be deemed to have a just cause to terminate
his contract, provided that he has put the debtor club in default in writing and has granted
a deadline of at least 15 days for the debtor club to fully comply with its financial
obligation(s).
9.
The Single Judge noted that the Claimant claims not having received his remuneration
corresponding to EUR 31,665. Furthermore, the Single Judge noted that the Claimant has
provided written evidence of having put the Respondent in default on 7 October 2022,
i.e. at least 15 days before unilaterally terminating the contract on 25 October 2022.
10. Considering the wording of art. 14bis par. 2 of the Regulations and the fact that the
Claimant’s salary was not due on a monthly basis, the Single Judge calculated the pro-rata
value of the remuneration and concluded that the amount claimed corresponded to more
than two monthly salaries.
11. Thus, the Single Judge concluded that the Claimant had a just cause to unilaterally
terminate the contract, based on art. 14bis of the Regulations.
ii. Consequences
12. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
13. The Single Judge observed that on 10 January 2023, the Respondent made a payment of
EUR 31,665 to the Claimant and that the latter acknowledged said payment but insisted
on its claim for the accrued interest therefrom.
14. In view of the above, the Single Judge decided that the said amount of EUR 31,665 shall
be deducted from the claimed outstanding amount but noted that the salary of
October 2022 remained outstanding.
15. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant
the amounts which remained outstanding under the contract at the moment of the
termination, i.e. EUR 5,833 (net).
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16. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant
interest as follows:
-
5% interest p.a. over the amount of EUR 5,833 net as from 25 October 2022 until
the date of effective payment;
5% interest p.a. over the amount EUR 10,000 of as from 1 July 2022 until
9 January 2023;
5% interest p.a. over the amount EUR 4,166 of as from 6 July 2022 until
9 January 2023;
5% interest p.a. over the amount EUR 5,833 of as from 6 August 2022 until
9 January 2023;
5% interest p.a. over the amount EUR 5,833 of as from 6 September 2022 until
9 January 2023;
5% interest p.a. over the amount EUR 5,833 of as from 6 October 2022 until
9 January 2023;
17. Having stated the above, the Single Judge turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the Single
Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
18. In application of the relevant provision, the Single Judge held that she first of all had to
clarify as to whether the pertinent employment contract contained a provision by means
of which the parties had beforehand agreed upon an amount of compensation payable
by the contractual parties in the event of breach of contract. In this regard, the Single
Judge established that no such compensation clause was included in the employment
contract at the basis of the matter at stake.
19. As a consequence, the Single Judge determined that the amount of compensation payable
by the club to the player had to be assessed in application of the other parameters set
out in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision
provides for a non-exhaustive enumeration of criteria to be taken into consideration
when calculating the amount of compensation payable.
20. Bearing in mind the foregoing as well as the claim of the player, the Single Judge
proceeded with the calculation of the monies payable to the player under the terms of
the contract from the date of its unilateral termination until its end date. Consequently,
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the Single Judge concluded that the amount of EUR 46,664 (i.e. EUR 5,833 x 8) serves as
the basis for the determination of the amount of compensation for breach of contract.
21. The Single Judge further noted that the player was entitled to flight tickets as per the
contract and decided to award the amount of EUR 1,923 as compensation for a one-way
ticket back to Argentina as calculated by FIFA Travel.
22. In continuation, the Single Judge verified as to whether the player had signed an
employment contract with another club during the relevant period of time, by means of
which he would have been enabled to reduce his loss of income. According to the
constant practice of the Single Judge as well as art. 17 par. 1 lit. ii) of the Regulations, such
remuneration under a new employment contract shall be taken into account in the
calculation of the amount of compensation for breach of contract in connection with the
player’s general obligation to mitigate his damages.
23. In this respect, the Single Judge noted that the player remained unemployed since the
unilateral termination of the contract.
24. The Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in
case the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
25. In this respect, the Single Judge decided to award the player compensation for breach of
contract in the amount of EUR 48,857 (EUR 46,664 plus EUR 1,923), as the residual value
of the contract.
26. Lastly, taking into consideration the player’s request as well as the constant practice of
the Single Judge in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of 25 October 2022 until the date of effective
payment.
iii. Compliance with monetary decisions
27. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
28. In this regard, the Single Judge highlighted that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from registering any
new players, either nationally or internationally, up until the due amounts are paid. The
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overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
29. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days
of notification of the decision, failing which, at the request of the Claimant, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become immediately
effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
30. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is
attached to the present decision.
31. The Single Judge recalled that the above-mentioned ban will be lifted immediately and
prior to its complete serving upon payment of the due amounts, in accordance with art.
24 par. 8 of the Regulations.
d. Costs
32. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Single Judge decided that no procedural costs
were to be imposed on the parties.
33. Likewise, and for the sake of completeness, the Single Judge recalled the contents of
art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall
be awarded in these proceedings.
34. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Agustin Torassa, is partially accepted.
2.
The Respondent, SC Gjilani, has to pay to the Claimant, the following amount(s):
- EUR 5,833 net as outstanding remuneration plus 5% interest p.a. as from 25 October
2022 until the date of effective payment;
- interest p.a. as follows:
- 5% interest p.a. over the amount EUR 10,000 of as from 1 July 2022 until 9 January 2023;
- 5% interest p.a. over the amount EUR 4,166 of as from 6 July 2022 until 9 January 2023;
- 5% interest p.a. over the amount EUR 5,833 of as from 6 August 2022 until 9 January 2023;
- 5% interest p.a. over the amount EUR 5,833 of as from 6 September 2022 until 9 January 2023;
- 5% interest p.a. over the amount EUR 5,833 of as from 6 October 2022 until 9 January 2023;
- EUR 48,857 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 25 October 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
(including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban
shall be of up to three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still not
made by the end of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules).
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